Case C-234/02 P

European Ombudsman

v

Frank Lamberts

(Appeal – Inadmissibility – Non-contractual liability – European Ombudman’s manner of dealing with a complaint concerning an internal competition for establishment)

Summary of the Judgment

1. Actions for damages – Subject-matter – Application for compensation for damage caused as a result of the alleged mishandling by the European Ombudsman of a complaint – Admissibility – Competence of the Community judicature compatible with the Parliament’s powers of review – Failure to call in question the Ombudsman’s independence

(Arts 195 EC, 235 EC and 288 EC, second para.; Statute of the European Ombudsman, Arts 3(7) and (8) and 8)

2. Actions for damages – Autonomy as against actions for annulment and for failure to act – Need to assess the lawfulness of the conduct of the Community institution or body causing the damage in order to establish liability – Action seeking compensation for loss resulting from the alleged mishandling by the European Ombudsman of a complaint – Assessment of the lawfulness of the Ombudsman’s conduct in the performance of his duties

(Arts 235 EC and 288 EC, second para.)

3. Appeals – Pleas in law – Mere repetition of the pleas and arguments raised submitted to the Court of First Instance – Error of law relied on not identified – Inadmissible

(Art. 225 EC; Statute of the Court of Justice, Art. 58, first para.; Rules of Procedure of the Court of Justice, Art. 112( 1)( c))

4. European Ombudsman – General obligation to inform complainants of the judicial remedies available and the time-limits for availing themselves thereof – No such obligation

(Statute of the European Ombudsman, Art. 2(5))

5. European Ombudsman – Solution according with the specific interest of the citizen concerned to be sought – Duty to cooperate with the institution concerned – Ombudsman’s discretion – Decision concluding that it was not possible to find a solution satisfactory to the complainant – Wrongful conduct – No wrongful conduct

(Statute of the European Ombudsman, Art. 3(5))

1. Although the Ombudsman enjoys very wide discretion as regards the merits of complaints which he receives and the way in which he deals with them, and in so doing he is under no obligation as to the result to be achieved, so that review by the Community judicature must be limited, it is possible that in very exceptional circumstances a citizen may be able to demonstrate that the Ombudsman has committed a sufficiently serious breach of Community law in the performance of his duties likely to cause damage to the citizen concerned. Therefore, an action for damages founded on the Community’s non‑contractual liability as a result of the alleged mishandling by the Ombudsman of a complaint is in principle admissible.

Judicial review of the activities of the Ombudsman is not precluded by the review powers available to the Parliament in regard of him. First, the obligation on the Ombudsman to report to the Parliament cannot be analysed as review by the Parliament of the proper performance by the Ombudsman of his duties in dealing with citizens’ complaints. Secondly, the procedure for dismissal of the Ombudsman relates to an appraisal of his overall activity and not to review by the Parliament of the performance by the Ombudsman of his tasks when dealing with a citizen’s complaint. In any event, the Parliament’s powers with regard to the Ombudsman are not akin to judicial review. Consequently, judicial review of the Ombudsman’s activity does not duplicate review by the Parliament.

Furthermore, it does not appear that the possibility that, under certain circumstances, the Community may incur liability owing to conduct on the part of the Ombudsman in the performance of his duties which is contrary to Community law is of such a nature as to call in question the Ombudsman’s independence.

(see paras 43-48, 52)

2. The action to establish liability is an autonomous form of action, with a particular purpose to fulfil within the system of legal remedies and subject to conditions of use dictated by its specific purpose. Although actions for annulment and for failure to act seek a declaration that a legally binding measure is unlawful or that such a measure has not been taken, an action to establish liability seeks compensation for damage resulting from a measure or from unlawful conduct, attributable to a Community institution or body.

In this respect, one of the preconditions of the right to reparation being the existence of a sufficiently serious breach of a rule of law conferring rights on individuals, it is necessary, with regard to the non‑contractual liability of the Community, to assess the conduct causing the damage in order to establish the liability of a Community institution or body. In fact, if a Community court were unable to assess the legality of the conduct of a Community institution or body, the procedure provided for in Article 235 EC would be rendered ineffective.

Consequently, in the context specifically of an action founded on the non‑contractual liability of the Community and seeking reparation for loss allegedly caused by the manner in which the Ombudsman dealt with a complaint, it is appropriate to assess the lawfulness of the Ombudsman’s conduct in the performance of his duties.

(see paras 59-62)

3. Where an appellant challenges the interpretation or application of Community law by the Court of First Instance, the points of law examined at first instance may be discussed again in the course of an appeal. Indeed, if an appellant could not thus base his appeal on pleas in law and arguments already relied on before the Court of First Instance, an appeal would be deprived of part of its purpose. However, it follows from Article 225 EC, the first paragraph of Article 58 of the Statute of the Court of Justice and Article 112(1), first subparagraph, (c) of its Rules of Procedure that an appeal must indicate precisely the contested elements of the judgment which the appellant seeks to have set aside and also the legal arguments specifically advanced in support of the appeal. Where an appeal merely reproduces the pleas in law and arguments previously submitted to the Court of First Instance, without even including an argument specifically identifying the error of law allegedly vitiating the judgment under appeal, it fails to satisfy that requirement. In reality, such an appeal amounts to no more than a request for re-examination of the application submitted to the Court of First Instance, which falls outside the jurisdiction of the Court of Justice

(see paras 75-77)

4. The provisions governing the performance of the Ombudsman’s duties, and more specifically Article 2(5) of Decision 94/262 on the regulations and general conditions governing the performance of the Ombudsman’s duties, do not impose on the Ombudsman any obligation to inform the complainant of the other legal remedies afforded to him and of the time‑limits to be observed with regard to rights of action before the courts. Nor, a fortiori, is it incumbent on him to advise the complainant to pursue any particular legal remedy. Whilst it may be in the interests of the proper fulfilment of the tasks conferred on him by the Treaty for the Ombudsman, if appropriate, to inform the citizen concerned of the actions to be brought in order to serve his interests in the best way possible, Article 2(5) of Decision 94/262 cannot be interpreted as founding a right in favour of the complainant to be referred to the Court of First Instance in order to bring before it an action for annulment against the decision of the institution which is the subject of the complaint.

(see paras 80-81)

5. As regards the search for a friendly solution to the dispute between the person who has referred a complaint to him and a Community institution, in accordance with Article 3(5) of Decision 94/262 on the regulations and general conditions governing the performance of the Ombudsman’s duties, the Ombudsman is solely required to cooperate with the institution concerned in order to seek a solution such as to eliminate the instance of maladministration and satisfy the complainant. In that regard he enjoys very wide discretion. In particular, he must assess whether the search for a solution satisfying the complainant may be contemplated, since there are situations in which the search for such a solution is not possible, as is envisaged in Article 6(3) of the provisions implementing those regulations, in which case the Ombudsman is to close the case with a reasoned decision. In any event, the Ombudsman cannot be criticised for not correctly performing the mission entrusted to him on the sole ground that he concluded that it was not possible to find a solution satisfactory to the complainant. It follows that the Ombudsman is able, without being guilty of wrongful conduct, to conclude in the decision closing a specific inquiry that there is no prospect of a friendly solution acceptable to the complainant.

(see para. 82)

JUDGMENT OF THE COURT (Full Court) 23 March 2004 (1)

(Appeal – Inadmissibility – Non-contractual liability – European Ombudman’s manner of dealing with a complaint concerning an internal competition for establishment)

In Case C-234/02 P,

appellant,

APPEAL against the judgment of the Court of First Instance of the European Communities (Third Chamber) of 10 April 2002 in Case T-209/00

the other party to the proceedings being:

applicant at first instance and appellant on a cross-appeal,

THE COURT (Full Court),,

composed of: V. Skouris, President, P. Jann, C.W.A Timmermans, C. Gulmann (Rapporteur), J.N. Cunha Rodrigues and A. Rosas, Presidents of Chambers, J.-P. Puissochet, R. Schintgen, F. Macken, N. Colneric and S. von Bahr, Judges,

Advocate General: L.A. Geelhoed,

after hearing oral argument from the parties at the hearing on 13 May 2003,

after hearing the Opinion of the Advocate General at the sitting on 3 July 2003,

gives the following

‘1. The European Parliament shall appoint an Ombudsman empowered to receive complaints from any citizen of the Union or any natural or legal person residing or having its registered office in a Member State concerning instances of maladministration in the activities of the Community institutions or bodies, with the exception of the Court of Justice and the Court of First Instance acting in their judicial role.

In accordance with his duties, the Ombudsman shall conduct inquiries for which he finds grounds, either on his own initiative or on the basis of complaints submitted to him direct or through a Member of the European Parliament, except where the alleged facts are or have been the subject of legal proceedings. Where the Ombudsman establishes an instance of maladministration, he shall refer the matter to the institution concerned, which shall have a period of three months in which to inform him of its views. The Ombudsman shall then forward a report to the European Parliament and the institution concerned.

The person lodging the complaint shall be informed of the outcome of such inquiries. The Ombudsman shall submit an annual report to the European Parliament on the outcome of his inquiries.

2. …

The Ombudsman may be dismissed by the Court of Justice at the request of the European Parliament if he no longer fulfils the conditions required for the performance of his duties or if he is guilty of serious misconduct.

3. The Ombudsman shall be completely independent in the performance of his duties. In the performance of those duties he shall neither seek nor take instructions from any body. …’

‘Decision 94/262 … assigns to the Ombudsman not only the task of identifying and seeking to eliminate instances of maladministration on behalf of the public interest but also that of seeking, so far as is possible, a settlement that is in accordance with the specific interest of the citizen concerned. The Ombudsman has indeed, as he himself stressed, very wide discretion as regards the merits of complaints and the way in which he deals with them, and in so doing he is under no obligation as to the result to be achieved. However, even if review by the Community judicature must consequently be limited, it is possible that in very exceptional circumstances a citizen may be able to demonstrate that the Ombudsman has made a manifest error in the performance of his duties likely to cause damage to the citizen concerned.’

‘58 … the Ombudsman’s argument that any measures he may take following his inquiries are not binding cannot be accepted either. The action for damages provided for under the Treaty was introduced as an autonomous form of action, with a particular purpose to fulfil within the system of legal remedies and subject to conditions of use dictated by its specific purpose … . Although actions for annulment and for failure to act seek a declaration that a legally binding measure is unlawful or that such a measure has not been taken, an action for damages seeks compensation for damage resulting from a measure, whether legally binding or not, or from conduct, attributable to a Community institution or body … .

Presentation and arguments

Findings of the Court

Presentation and arguments

Findings of the Court

Presentation and arguments

Findings of the Court

Admissibility of the plea

Substance of the plea

On those grounds,

THE COURT

hereby:

Skouris

Jann

Timmermans

Gulmann

Cunha Rodrigues

Rosas

Puissochet

Schintgen

Macken

Colneric

von Bahr

Delivered in open court in Luxembourg on 23 March 2004.

Registrar

President

R. Grass

V. Skouris